Red 2017-28-144-6-10.pdf

GENERAL CONDITIONS GUIDANCE 1.11 Contractor’s Use of Employer’s Documents FORMS This document is restricted for distribution within the Lexis Nexis platform - NOT FOR CONTRACT USE AND NOT PRINTABLE - ORIGINAL FOR SALE AT www.fidic.org 1.12 Confidentiality The Contractor’s Documents...

GENERAL CONDITIONS GUIDANCE 1.11 Contractor’s Use of Employer’s Documents FORMS This document is restricted for distribution within the Lexis Nexis platform - NOT FOR CONTRACT USE AND NOT PRINTABLE - ORIGINAL FOR SALE AT www.fidic.org 1.12 Confidentiality The Contractor’s Documents (and other design documents, if any, made by (or on behalf of) the Contractor) shall not, without the Contractor’s prior consent, be used, copied or communicated to a third party by (or on behalf of) the Employer for purposes other than those permitted under this Sub-Clause. As between the Parties, the Employer shall retain the copyright and other intellectual property rights in the Specification and Drawings and other documents made by (or on behalf of) the Employer. The Contractor may, at the Contractor’s cost, copy, use and communicate these documents for the purposes of the Contract. These documents (in whole or in part) shall not, without the Employer’s prior consent, be copied, used or communicated to a third party by the Contractor, except as necessary for the purposes of the Contract. The Contractor shall disclose all such confidential and other information as the Engineer may reasonably require in order to verify the Contractor’s compliance with the Contract. The Contractor shall treat all documents forming the Contract as confidential, except to the extent necessary to carry out the Contractor’s obligations under the Contract. The Contractor shall not publish, permit to be published, or disclose any particulars of the Contract in any trade or technical paper or elsewhere without the Employer’s prior consent. The Employer and the Engineer shall treat all information provided by the Contractor and marked “confidential”, as confidential. The Employer shall not disclose or permit to be disclosed any such information to third parties, except as may be necessary when exercising the Employer’s rights under Sub-Clause 15.2 [Termination for Contractor’s Default]. A Party’s obligation of confidentiality under this Sub-Clause shall not apply where the information: (a) (b) (c) 1.13 Compliance with Laws The Contractor and the Employer shall, in performing the Contract, comply with all applicable Laws. Unless otherwise stated in the Specification: (a) 12 © FIDIC 2017 was already in that Party’s possession without an obligation of confidentiality before receipt from the other Party; becomes generally available to the public through no breach of these Conditions; or is lawfully obtained by the Party from a third party which is not bound by an obligation of confidentiality. the Employer shall have obtained (or shall obtain) the planning, zoning or building permit or similar permits, permissions, licences and/or approvals for the Permanent Works, and any other permits, permissions, licenses and/or approvals described in the Specification as having been (or being) obtained by the Employer. The Employer shall indemnify and hold the Contractor harmless against and from the consequences of any delay or failure to do so, unless the failure is caused by the Contractor’s failure to comply with sub-paragraph (c) below; Conditions of Contract for Construction This document is restricted for distribution within the Lexis Nexis platform - NOT FOR CONTRACT USE AND NOT PRINTABLE - ORIGINAL FOR SALE AT www.fidic.org (d) If, having complied with sub-paragraph (c) above, the Contractor suffers delay and/or incurs Cost as a result of the Employer’s delay or failure to obtain any permit, permission, licence or approval under sub-paragraph (a) above, the Contractor shall be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or EOT] to EOT and/or payment of such Cost Plus Profit. If the Employer incurs additional costs as a result of the Contractor’s failure to comply with: (i) (ii) 1.14 Joint and Several Liability the Employer shall be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or EOT] to payment of these costs by the Contractor. If the Contractor is a Joint Venture: (a) (b) (c) 1.15 Limitation of Liability (d) (e) (f) © FIDIC 2017 the members of the JV shall be jointly and severally liable to the Employer for the performance of the Contractor’s obligations under the Contract; the JV leader shall have authority to bind the Contractor and each member of the JV; and neither the members nor (if known) the scope and parts of the Works to be carried out by each member nor the legal status of the JV shall be altered without the prior consent of the Employer (but such consent shall not relieve the altered JV from any liability under sub-paragraph (a) above). Neither Party shall be liable to the other Party for loss of use of any Works, loss of profit, loss of any contract or for any indirect or consequential loss or damage which may be suffered by the other Party in connection with the Contract, other than under: (a) (b) (c) General Conditions sub-paragraph (c) above; or sub-paragraph (b) or (d) above, provided that the Employer shall have complied with Sub-Clause 2.2 [Assistance], Sub-Clause 8.8 [Delay Damages]; sub-paragraph (c) of Sub-Clause 13.3.1 [Variation by Instruction]; Sub-Clause 15.7 [Payment after Termination for Employer’s Convenience]; Sub-Clause 16.4 [Payment after Termination by Contractor]; Sub-Clause 17.3 [Intellectual and Industrial Property Rights]; the first paragraph of Sub-Clause 17.4 [Indemnities by Contractor]; 13 GENERAL CONDITIONS GUIDANCE (c) the Contractor shall give all notices, pay all taxes, duties and fees, and obtain all other permits, permissions, licences and/or approvals, as required by the Laws in relation to the execution of the Works. The Contractor shall indemnify and hold the Employer harmless against and from the consequences of any failure to do so unless the failure is caused by the Employer’s failure to comply with Sub-Clause 2.2 [Assistance]; within the time(s) stated in the Specification the Contractor shall provide such assistance and all documentation, as described in the Specification or otherwise reasonably required by the Employer, so as to allow the Employer to obtain any permit, permission, licence or approval under sub-paragraph (a) above; and the Contractor shall comply with all permits, permissions, licences and/or approvals obtained by the Employer under sub-paragraph (a) above. FORMS (b) (i) (ii) (iii) FORMS GUIDANCE GENERAL CONDITIONS (g) (iv) shall not exceed the sum stated in the Contract Data or (if a sum is not so stated) the Accepted Contract Amount. This Sub-Clause shall not limit liability in any case of fraud, gross negligence, deliberate default or reckless misconduct by the defaulting Party. 1.16 Contract Termination This document is restricted for distribution within the Lexis Nexis platform - NOT FOR CONTRACT USE AND NOT PRINTABLE - ORIGINAL FOR SALE AT www.fidic.org and Sub-Clause 17.5 [Indemnities by Employer]. The total liability of the Contractor to the Employer under or in connection with the Contract, other than: under Sub-Clause 2.6 [Employer-Supplied Materials and Employer’s Equipment]; under Sub-Clause 4.19 [Temporary Utilities]; under Sub-Clause 17.3 [Intellectual and Industrial Property Rights]; and under the first paragraph of Sub-Clause 17.4 [Indemnities by Contractor], Subject to any mandatory requirements under the governing law of the Contract, termination of the Contract under any Sub-Clause of these Conditions shall require no action of whatsoever kind by either Party other than as stated in the Sub-Clause. 2 The Employer 2.1 Right of Access to the Site The Employer shall give the Contractor right of access to, and possession of, all parts of the Site within the time (or times) stated in the Contract Data. The right and possession may not be exclusive to the Contractor. If, under the Contract, the Employer is required to give (to the Contractor) possession of any foundation, structure, plant or means of access, the Employer shall do so in the time and manner stated in the Specification. However, the Employer may withhold any such right or possession until the Performance Security has been received. If no such time is stated in the Contract Data, the Employer shall give the Contractor right of access to, and possession of, those parts of the Site within such times as may be required to enable the Contractor to proceed in accordance with the Programme or, if there is no Programme at that time, the initial programme submitted under Sub-Clause 8.3 [Programme]. If the Contractor suffers delay and/or incurs Cost as a result of a failure by the Employer to give any such right or possession within such time, the Contractor shall be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or EOT] to EOT and/or payment of such Cost Plus Profit. However, if and to the extent that the Employer’s failure was caused by any error or delay by the Contractor, including an error in, or delay in the submission of, any of the applicable Contractor’s Documents, the Contractor shall not be entitled to such EOT and/or Cost Plus Profit. 2.2 Assistance 14 © FIDIC 2017 If requested by the Contractor, the Employer shall promptly provide reasonable assistance to the Contractor so as to allow the Contractor to obtain: Conditions of Contract for Construction  2.3 Employer’s Personnel and Other Contractors The Employer shall be responsible for ensuring that the Employer’s Personnel and the Employer’s other contractors (if any) on or near the Site: This document is restricted for distribution within the Lexis Nexis platform - NOT FOR CONTRACT USE AND NOT PRINTABLE - ORIGINAL FOR SALE AT www.fidic.org (a) (b) 2.4 Employer’s Financial Arrangements co-operate with the Contractor’s efforts under Sub-Clause 4.6 [Co-operation]; and comply with the same obligations which the Contractor is required to comply with under sub-paragraphs (a) to (e) of Sub-Clause 4.8 [Health and Safety Obligations] and under Sub-Clause 4.18 [Protection of the Environment]. The Contractor may require the Employer to remove (or cause to be removed) any person of the Employer’s Personnel or of the Employer’s other contractors (if any) who is found, based on reasonable evidence, to have engaged in corrupt, fraudulent, collusive or coercive practice. The Employer’s arrangements for financing the Employer’s obligations under the Contract shall be detailed in the Contract Data. If the Employer intends to make any material change (affecting the Employer’s ability to pay the part of the Contract Price remaining to be paid at that time as estimated by the Engineer) to these financial arrangements, or has to do so because of changes in the Employer’s financial situation, the Employer shall immediately give a Notice to the Contractor with detailed supporting particulars. If the Contractor: (a) (b) (c) General Conditions © FIDIC 2017 receives an instruction to execute a Variation with a price greater than ten percent (10%) of the Accepted Contract Amount, or the accumulated total of Variations exceeds thirty percent (30%) of the Accepted Contract Amount; does not receive payment in accordance with Sub-Clause 14.7 [Payment]; or becomes aware of a material change in the Employer’s financial arrangements of which the Contractor has not received a Notice under this Sub-Clause, the Contractor may request and the Employer shall, within 28 days after receiving this request, provide reasonable evidence that financial arrangements have been made and are being maintained which will enable the Employer to pay the part of the Contract Price remaining to be paid at that time (as estimated by the Engineer). 15 GENERAL CONDITIONS GUIDANCE (b) copies of the Laws of the Country which are relevant to the Contract but are not readily available; and any permits, permissions, licences or approvals required by the Laws of the Country (including information required to be submitted by the Contractor in order to obtain such permits, permissions, licences or approvals): (i) which the Contractor is required to obtain under Sub-Clause 1.13 [Compliance with Laws]; (ii) for the delivery of Goods, including clearance through customs; and (iii) for the export of Contractor’s Equipment when it is removed from the Site. FORMS (a) GENERAL CONDITIONS GUIDANCE FORMS This document is restricted for distribution within the Lexis Nexis platform - NOT FOR CONTRACT USE AND NOT PRINTABLE - ORIGINAL FOR SALE AT www.fidic.org 2.5 Site Data and Items of Reference 2.6 Employer-Supplied Materials and Employer’s Equipment The Employer shall have made available to the Contractor for information, before the Base Date, all relevant data in the Employer’s possession on the topography of the Site and on sub-surface, hydrological, climatic and environmental conditions at the Site. The Employer shall promptly make available to the Contractor all such data which comes into the Employer’s possession after the Base Date. The original survey control points, lines and levels of reference (the “items of reference” in these Conditions) shall be specified on the Drawings and/or in the Specification or issued to the Contractor by a Notice from the Engineer. If Employer-Supplied Materials and/or Employer’s Equipment are listed in the Specification for the Contractor’s use in the execution of the Works, the Employer shall make such materials and/or equipment available to the Contractor in accordance with the details, times, arrangements, rates and prices stated in the Specification. The Contractor shall be responsible for each item of Employer’s Equipment whilst any of the Contractor’s Personnel is operating it, driving it, directing it, using it, or in control of it. 3 The Engineer 3.1 The Engineer The Employer shall appoint the Engineer, who shall carry out the duties assigned to the Engineer in the Contract. The Engineer shall be vested with all the authority necessary to act as the Engineer under the Contract. If the Engineer is a legal entity, a natural person employed by the Engineer shall be appointed and authorised to act on behalf of the Engineer under the Contract. The Engineer (or, if a legal entity, the natural person appointed to act on its behalf) shall be: (a) (b) 3.2 Engineer’s Duties and Authority 16 © FIDIC 2017 a professional engineer having suitable qualifications, experience and competence to act as the Engineer under the Contract; and shall be fluent in the ruling language defined in Sub-Clause 1.4 [Law and Language]. Where the Engineer is a legal entity, the Engineer shall give a Notice to the Parties of the natural person (or any replacement) appointed and authorised to act on its behalf. The authority shall not take effect until this Notice has been received by both Parties. The Engineer shall similarly give a Notice of any revocation of such authority. Except as otherwise stated in these Conditions, whenever carrying out duties or exercising authority, specified in or implied by the Contract, the Engineer shall act as a skilled professional and shall be deemed to act for the Employer. Conditions of Contract for Construction